DISSENTING OPINION

PERLAS-BERNABE, J.:

I dissent.

Amid the complexity of the legal issues and political implications involved, this Court, in ruling on this matter - as in every
other similar matter before it - must always harken back to its parameters of review over rulings of the Commission on
Elections (COMELEC). It is on this basic but resolute premise that I submit this dissent.

I.

In Mitra v. COMELEC (Mitra), it was explained that "[t]he basis for the Court's review of COMELEC rulings under the
1

standards of Rule 65 of the Rules of Court is Section 7, Article IX-A of the [1987] Constitution which provides that '[u]nless
otherwise provided by the Constitution or by law, any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty [(30)] days from receipt of a copy thereof.' For this
reason, the Rules of Court provide for a separate rule (Rule 64) specifically applicable only to decisions of the COMELEC
and the Commission on Audit. This Rule expressly refers to the application of Rule 65 in the filing of a petition for
certiorari, subject to the exception clause - 'except as hereinafter provided."'2

"The purpose of a petition for certiorari is to determine whether the challenged tribunal has acted without or in excess of
its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Thus, any resort to a petition
for certiorari under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure is limited to the resolution of
jurisdictional issues." 3

In Miranda v. Abaya, this Court held that "an act of a court or tribunal may only be considered to have been done in grave
4

abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment which is equivalent
to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion or personal hostility x x x. An error of judgment
committed in the exercise of its legitimate jurisdiction is not the same as 'grave abuse of discretion.' An abuse of
discretion is not sufficient by itself to justify the issuance of a writ of certiorari. The abuse must be grave and
patent, and it must be shown that the discretion was exercised arbitrarily and despotically xx x." 5

In this case, the COMELEC held that petitioner Mary Grace Natividad S. Poe-Llamanzares (petitioner) made false
representations in her certificate of candidacy (CoC) for President filed on October 15, 2015 (2015 CoC) when she
6

declared under oath that she is a natural-born citizen of this country and would be a resident thereof for ten ( 10) years
and eleven (11) months on the day immediately preceding the May 9, 2016 Elections. Accordingly, the COMELEC
7

cancelled petitioner's CoC. 8

Finding the verdict to be "deadly diseased with grave abuse of discretion from root to fruits," the ponencia nullifies the
9

COMELEC's assailed rulings, and even goes to the extent of declaring petitioner as an eligible candidate.
10 11

As to its first reason, the ponencia posits that the COMELEC, in ruling on a petition to deny due course to or cancel a
CoC, is restrained "from going into the issue of the qualifications of the candidate for the position, if, as in this case, such
issue is yet undecided or undetermined by the proper authority." Consequently, "[t]he COMELEC cannot itself, in the
12

same cancellation case, decide the qualification or lack thereof of the candidate." 13

I disagree.

The COMELEC's power to deny due course to or cancel a candidate's CoC stems from Section 2, Article IX-C of the 1987
Constitution which grants it the authority to "[e]nforce and administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum, and recall" and to "[d]ecide, except those involving the right to
vote, all questions affecting elections x x x." In Loong v. COMELEC, it was elucidated that:
14

Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power "to enforce and administer
all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum[,] and recall."
Undoubtedly, the text and intent of this provision is to give COMELEC all the necessary and incidental powers for
it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections. Congruent to this
intent, this Court has not been niggardly in defining the parameters of powers of COMELEC in the conduct of our
elections. (Emphasis and underscoring supplied)
15

Likewise, in Bedol v. COMELEC (Bedol): 16

The quasi-judicial power of the COMELEC embraces the power to resolve controversies arising from the
enforcement of election laws, and to be the sole judge of all pre-proclamation controversies; xx
x. (Emphasis and underscoring supplied)
17
Based on the text of the Constitution, and bearing in mind the import of cases on the matter, there is no perceivable
restriction which qualifies the exercise of the COMELEC's adjudicatory power to declare a candidate ineligible and thus,
cancel his/her CoC with the need of a prior determination coming from a "proper authority."

Contrary to the ponencia's interpretation, the COMELEC, under Rule 25 of its Resolution No. 9523 dated September 25,
18

2012, may disqualify any candidate found by the Commission to be suffering from any disqualification provided by
law or the Constitution:

Rule 25 - Disqualification of Candidates

Section 1. Grounds. - Any candidate who, in an action or protest in which he is a party, is declared by final decision of a
competent court, guilty of, or found by the Commission to be suffering from any disqualification provided by law or
the Constitution.

x x x x (Emphasis supplied)

It is confounding that the ponencia ignores the second prong of the provision and myopically zeroes-in on the first which
but procedurally reflects the COMELEC's power to disqualify a candidate already declared by final decision of a
competent court guilty of any disqualification, such as those accessory to a criminal conviction. 19

As edified in Bedol, it is the COMELEC which is the "sole judge of all pre-proclamation controversies." Thus, it would
20

greatly emasculate the COMELEC's constitutionally-conferred powers by treating it as a mere administrative organ
relegated to the task of conducting perfunctory reviews only to spot falsities on the face of CoCs or ministerially enforce
declarations from a prior authority.

As in this case, a "pre-proclamation controversy" may arise from a petition to deny due course to or cancel a CoC. This
remedy- which is filed before and falls under the adjudicatory jurisdiction of the COMELEC - is governed by Section 78,
Article IX of Batas Pambansa Bilang 881, otherwise known as the "Omnibus Election Code of the Philippines" (OEC): 21

Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny
due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof is false. The petition may be
22

filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall
be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis and
underscoring supplied)

As worded, a Section 78 petition is based exclusively on the ground that a CoC contains a material representation
that is false. "The false representation contemplated by Section 78 of the [OEC] pertains to [a] material fact, and is not
simply an innocuous mistake. A material fact refers to a candidate's qualification for elective office such as one's
citizenship and residence. " 23

While there are decided cases wherein this Court has stated that "a false representation under Section 78 must consist of
'a deliberate attempt to mislead, misinform, or hide a fact, which would otherwise render a candidate ineligible,
"' nowhere does the provision mention this requirement. In Tagolino v. House of Representatives Electoral Tribunal
24

(Tagolino ), this Court enunciated that:

25

[T]he deliberateness of the misrepresentation, much less one's intent to defraud, is of bare significance in
a Section 78 petition as it is enough that the person's declaration of a material qualification in the CoC be
false. In this relation, jurisprudence holds that an express finding that the person committed any deliberate
misrepresentation is of little consequence in the determination of whether one's CoC should be deemed cancelled
or not. What remains material is that the petition essentially seeks to deny due course to and/or cancel the CoC
on the basis of one's ineligibility and that the same be granted without any qualification. (Emphasis and
26

underscoring supplied)

Albeit incorporating the intent requirement into their respective discussions, a survey of certain cases decided
after Tagolino only prove to demonstrate the "bare significance" of the said requisite.

For instance, in Villafuerte v. COMELEC, this Court echoed precedent, when it stated that "a false representation under
27

Section 78" must be made "with an intention to deceive the electorate as to one's qualifications for public
office." However, this Court never looked into the circumstances that surrounded the candidate's representation. Instead,
28

it equated deliberateness of representation with the materiality of the fact being represented in the CoC. Thus, it held
therein that "respondent's nickname 'LRA Y JR. MIGZ' written in his COC is [not] a material misrepresentation," reasoning
that the nickname "cannot be considered a material fact which pertains to his eligibility and thus qualification to run for
public office." 29

In Hayudini v. COMELEC, this Court, while dealing with a case that involved material representations pertaining to
30

residency and voter registration, did not discuss the circumstances which would demonstrate the intent of the candidate
behind his CoC representations. It again parroted precedent without any devoted discussion on the matter of intent. 31
Similarly, in Jalover v. Osmena (Jalover) this Court just repeated precedent when it said that "[s]eparate from the
32

requirement of materiality, a false representation under Section 78 must consist of a 'deliberate attempt to mislead,
misinform, or hide a fact, which would otherwise render a candidate ineligible," but did not apply the same. In fact, a
33

closer scrutiny of Jalover, which cited Mitra, would lead to the reasonable conclusion that jurisprudence has all the while
presumed deliberateness of intent from the materiality of the falsity. The quoted passage from Mitra reads: "[t]he
deliberate character of the misrepresentation necessarily follows from a consideration of the consequences of any
material falsity x x x." The "separateness" of the requirement of intent from the requisite of materiality is hence, more
34

apparent than real. The bottom line according to Jalover, citing Mitra, is that "a candidate who falsifies a material fact
cannot run." This statement therefore demonstrates that the intent requirement is but a fictional superfluity, if not
35

anomaly, which is actually devoid of its own conceptual relevance. As such, its existence in jurisprudence only serves as a
perplexing, if not, hazardous, mirage.

In the more recent case of Agustin v. COMELEC, this Court, while again quoting the same passages from Mitra, upheld
36

"the declaration by the COMELEC En Banc" - which was, by the way, acting on a Section 78 petition - "that [therein]
petitioner was ineligible to run and be voted for as Mayor of the Municpality of Marcos, Ilocos Norte" on the ground that he
"effectively repudiated his oath of renunciation" by the use of his US passport and, thus, "reverted him to his earlier status
as a dual citizcn." Interestingly, this Court, consistent with the above-cited passage from Tagolino, stated that "[ e ]ven if it
37

made no finding that the petitioner deliberately attempted to mislead or misinform as to warrant the cancellation of his
CoC, the COMELEC could still declare him disqualified for not meeting the required eligibility under the Local Government
Code." 38

Again, the plain text of Section 78 reads that the remedy is based "on the ground that any material representation
contained therein as required under Section 74 hereof is false." It pertains to a material representation that is false and not
a "material misrepresentation." In my view, the latter is a semantic but impactful misnomer which tends to obfuscate the
sense of the provision as it suggests - by employing the word "misrepresent," ordinarily understood to mean as "to give a
false or misleading representation of usually with an intent to deceive or be unfair" - that intent is crucial in a Section 78
39

petition, when, in fact, it is not.

Notably, the Dissenting Opinion of former Supreme Court Associate Justice Dante O. Tinga (Justice Tinga) in Tecson v.
COMELEC (Tecson) explains the irrelevance of the candidate's intention or belief in ruling on a Section 78 petition. There,
40

he even pointed out the jurisprudential missteps in the cases of Romualdez-Marcos v. COMELEC (Romualdez-Marcos)
41

and Salcedo II v. COMELEC (Salcedo II) wherein the phantom requirement of "deliberate intention to mislead" was first
42

foisted:

[I]n accordance with Section 78, supra, the petitioner in a petition to deny due course [to or] cancel a certificate of
candidacy need only prove three elements. First, there is a representation contained in the certificate of candidacy.
Second, the representation is required under Section 74. Third, the representation must be "material," which, according to
jurisprudence, means that it pertains to the eligibility of the candidate to the office. Fourth, the representation is false.

Asserting that proof of intent to conceal is also necessary for a petition under Section 78 to prosper, Mr. Justice Kapunan
wrote in Romualdez-Marcos v. [COMELEC], thus:

It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether
or not an individual has satisfied the [C]onstitution's residency qualification requirement. The said statement becomes
material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and knowingly make a
statement in a certificate of candidacy which would lead to his or her disqualification. [Italics in the original]

The Court, reiterated the Kapunan pronouncement in Salcedo II v. [COMELEC].

Adverting to Romualdez-Marcos and Salcedo II, the COMELEC En Banc ruled that while the element of materiality was
not in question the intent to deceive was not established, not even the knowledge of falsity, thus:

Undeniably, the question on the citizenship [of] respondent falls within the requirement of materiality under Section 78.
However, proof of misrepresentation with a deliberate attempt to mislead must still be established. In other words, direct
and substantial evidence showing that the person whose certificate of candidacy is being sought to be cancelled or denied
due course, must have known or have been aware of the falsehood as appearing on his certificate. [Italics in the original]

The pronouncements in Romualdez-Marcos and Salcedo II, however, are clearly not supported by a plain reading of the
law. Nowhere in Section 78 is it stated or implied that there be an intention to deceive for a certificate of
candidacy to be denied due course or be cancelled. All the law requires is that the "material representation contained
[in the certificate of candidacy] as required under Section 74 xx x is false." Be it noted that a hearing under Section 78 and
Rule 23 is a quasi-judicial proceeding where the intent of the respondent is irrelevant. Also drawing on the principles of
criminal law for analogy, the "offense" of material representation is malum prohibitum not malum in se. Intent is irrelevant.
When the law speaks in clear and categorical language, there is no reason for interpretation or construction, but only for
application.
The reason for the irrelevance of intent or belief is not difficult to divine. Even if a candidate believes that he is
eligible and purports to be so in his certificate of candidacy, but is subsequently proven in a Rule 23 proceeding
to be, in fact or in law, not eligible, it would be utterly foolish to allow him to proceed with his candidacy. The
electorate would be merely squandering its votes for - and the COMELEC, its resources in counting the ballots
cast in favor of - a candidate who is not, in any case, qualified to hold public office.

The Kapunan pronouncement in the Romualdez-Marcos case did not establish a doctrine. It is not supported by
law. and it smacks of judicial legislation. Moreover, such judicial legislation becomes even more egregious [,]
considering that it arises out of the pronouncement of only one Justice, or 6% of a Supreme Court. While several other
Justices joined Justice Kapunan in upholding the residence qualification of Rep. Imelda Romualdez-Marcos, they did not
share his dictum. It was his by his lonesome. Justice Puno had a separate opinion, concurred in by Justices Bellosillo and
Melo. Justice Mendoza filed a separate opinion too, in which Chief Justice Narvasa concurred. Justices Romero and
Francisco each hact separate opinions. Except for Chief Justice Narvasa and Justice Mendoza, the Justices in the
majority voted to grant Rep. [Marcos's] petition on the ground that she reestablished her domicile in Leyte upon being
widowed by the death of former President Marcos.

On the other hand, the reiteration of the Kapunan pronouncement in Salcedo is a mere obiter dictum. The Court
dismissed the disqualification case on the ground that the respondent's use of the surname "Salcedo" in her certificate of
candidacy is not a material representation since the entry does not refer to her qualification for elective office. Being what
it is, the Salcedo obiter cannot elevate the Kapunan pronouncement to the level of a doctrine regardless of how many
Justices voted for Salcedo. Significantly, Justice Puno concurred in the result only.

Thus, in this case, it does not matter that respondent knows that he was not a natural-born Filipino citizen and, knowing
such fact, proceeded to state otherwise in his certificate of candidacy, with an intent to deceive the electorate. A
candidate's citizenship eligibility in particular is determined by law, not by his good faith. It was, therefore, improper for the
COMELEC to dismiss the petition on the ground that petitioner failed to prove intent to mislead on the part of
respondent. (Emphases and underscoring supplied)
43

I could not agree more with Justice Tinga's exposition. Truly, "[ n ]owhere in Section 78 is it staied or implied that there be
an intention to deceive for a certificate of candidacy to be denied due course or be cancelled." At the risk of belaboring
44

the point, the candidate's intent to mislead or misinform on a material fact stated in his/her CoC is of no consequence in
ruling on a Section 78 petition. To premise a Section 78 petition on a finding of intent or belief would create a legal vacuum
wherein the COMELEC becomes powerless under the OEC to enjoin the candidacy of ineligible presidential candidates
upon a mere showing that the material representations in his/her CoC were all made in good faith. It should be
emphasized that "[a] candidate's citizenship eligibility in particular is determined by law, not by his good
faith." With this, the Romulaldez-Marcos and Salcedo II rulings which "judicially legislated" this requirement should,
45

therefore, be abandoned as legal aberrations.

Neither is it acceptable to think that the matter of eligibility - particularly, that of a candidate for President - can only be
taken up before the Presidential Electoral Tribunal (PET) after a candidate has already been voted for. The COMELEC's
constitutional mandate cannot be any clearer: it is empowered to "[ e ]nforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum, and recall" and to "[d]ecide, except those involving
the right to vote, all questions affecting elections x x x." As observed by Senior Associate Justice Antonio T. Carpio in his
46

own opinion in Tecson:

This broad constitutional power and function vested in the COMELEC is designed precisely to avoid any situation where a
dispute affecting elections is left without any legal remedy. If one who is obviously not a natural-born Philippine citizen, like
Arnold [Schwarzenegger], runs for President, the COMELEC is certainly not powerless to cancel the certificate of
candidacy of such candidate. There is no need to wait until after the elections before such candidate may be disqualified. 47

Verily, we cannot tolerate an absurd situation wherein a presidential candidate, who has already been determined by the
COMELEC to have missed a particular eligibility requirement and, thus, had made a false representation in his/her CoC
by declaring that he/she is eligible, is still allowed to continue his/her candidacy, and eventually be voted for. The
proposition that the matter of eligibility should be left to the PET to decide only after the elections is a dangerous one for
48

not only does it debase the COMELEC's constitutional powers, it also effectively results in a mockery of the electoral
process, not to mention the disenfranchisement of the voters. Clearly, the votes of the Filipino people would be put to
waste if we imprudently take away from the COMELEC its capability to avert the fielding of ineligible candidates whose
votes therefore shall be only considered stray. The Filipino people deserve to know prior to the elections if the person they
intend to vote for is ineligible. In all reasonable likelihood, they would not have cast their votes for a particular candidate
who would just be ousted from office later on.

At any rate, the jurisdictional boundaries have already been set: the COMELEC' s jurisdiction ends, and that of the PET
begins, only when a candidate therefore has already been elected, and thereafter, proclaimed. In Tecson, this Court
49

explained that the PET's jurisdiction under Section 4, Article VII of the 1987 Constitution is limited only to a post-election
scenario:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may promulgate its rules for the purpose.
 xxxx

Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests consist of
either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e.,
to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules
of the Presidential Electoral Tribunal," promulgated by the Supreme Court en bane on 18 April 1992, would support this
premise -

Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President of the Philippines.

Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or a petition for quo
warranto against the President or Vice-President. An election protest shall not include a petition for quo warranto. A
petition for quo warranto shall not include an election protest.

Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President of the Philippines who
received the second or third highest number of votes may contest the election of the President or the Vice-President, as
the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after
the proclamation of the winner.

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and
qualifications of the "President" or "Vice-President," of the Philippines, and not of "candidates" for President or Vice-
President. A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into,
or unlawfully holds or exercises a public office. In such context, the election contest can only contemplate a post-election
scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of
votes could file an election protest. This rule again presupposes a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, [Article VII] of the 1987
Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for
the presidency or vice-presidency before the elections are held. (Emphases supplied)
50

Thus, I respectfully object to the ponencia's enfeebling take on the COMELEC's power to determine the eligibility of a
candidate prior to the elections.

In fact, the ponencia's view is also inconsistent with its declaration that petitioner is "QUALIFIED to be a candidate for
President in the National and Local Elections of 9 May 2016." If the COMELEC had no power to determine the eligibility
51

of petitioner, then this Court - which is only tasked to exercise its power of review under the parameters of a petition
for certiorari and, thus, should have either nullified or affirmed the assailed rulings - could not proceed and assume
jurisdiction outside of the context of the case before it and make this ad hoc pronouncement. The declaration not only
serves to confuse the true powers of the COMELEC, it also distorts the manner of our review.

II.

The central question in this case, to which the analysis of grave abuse of discretion is applied, is whether or not the
representations of petitioner regarding her residency - particularly, that she would be a resident of this country for ten (10)
years and eleven (11) months on the day immediately preceding the May 9, 2016 Elections - and her citizenship -
particularly, that she is a natural-born citizen of the Philippines - in her 2015 CoC are false. Notably, a finding of falsity
even as to one representation would already be enough for the COMELEC to deny due course to or cancel her 2015
CoC. To recount, Section 7 4 - to which the false representation ground under Section 78 of the OEC relates to - provides
that "[t]he certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated
therein and that he is eligible for said office x x x." A candidate is eligible to run for the post of President for as long as
he or she is a natural-born citizen of the Philippines and a resident thereof for at least ten (10) years immediately
preceding the elections, among other requirements. These citizenship and residency requirements are delineated in
Section 2, Article VII of the 1987 Constitution:

Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered
voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines
for at least ten years immediately preceding such election.

All of the requirements must concur. Otherwise, the candidate is ineligible to run for President; and, hence, a contrary
declaration therefore, already amounts to a false material representation within the ambit of Section 78 of the OEC.

On the issue of residency, the ponencia claims that the COMELEC gravely abused its discretion in concluding that
petitioner falsely represented in her 2015 CoC that she is a resident of the Philippines for at least ten (10) years and
eleven (11) months immediately preceding the May 9, 2016 Elections as, in fact, it found her representation to be true. In 52

so finding, the ponencia gave credence to the voluminous and undisputed evidence which petitioner presented showing
that she and her family abandoned their US domicile and relocated to the Philippines for good, which began on her arrival
on May 24, 2005. It also pointed out that petitioner's entry in the Philippines visa-free as a balikbayan should not be taken
53
against her since, consistent with the purpose of the law, she actually reestablished life here. Finally,
54

the ponencia disregarded petitioner's prior statement in her 2012 CoC for Senator wherein she declared to be a resident
of the Philippines for six years (6) years and six (6) months before May 13, 2013, thus implying that she started being a
Philippine resident only in November 2006. 55

I beg to differ.

"To successfully effect a change of domicile[,] one must demonstrate an actual removal or an actual change of domicile; a
bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which
correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the new domicile must be actual." 56

In ruling that petitioner failed to reestablish her domicile in the Philippines on May 24, 2005 as she claimed, the
COMELEC primarily observed that all of the evidence presented by petitioner were executed before July 2006, which is
the date of reacquisition of her Filipino citizenship. Citing the cases of Coquilla v. COMELEC (Coquilla), Jafzon v.
57

COMELEC (Japzon), and Caballero v. COMELEC (Caballero), the COMELEC pronounced that the earliest possible
58 59

date that she could have reestablished her residence in the Philippines was when she reacquired her Filipino citizenship
in July 2006.

In Coquilla, the Court ruled that an alien, such as petitioner, may waive his/her status as a non-resident and thus, become
a resident alien by obtaining an immigrant visa under the Philippine Immigration Act of 1948 and an Immigrant Certificate
of Residence. Prior to this waiver, he/she is a visitor, a non-resident alien. Hence, without this waiver, petitioner remained
60

to be a visitor or a non-resident alien until July 2006.

On the other hand, in Japzon, the Court declared that reacquisition under Republic Act No. (RA) 9225, otherwise known
61

as the "Citizenship Retention and Reacquisition Act of 2003," has no automatic impact on a candidate's domicile as
he/she only had the option to again establish his/her domicile. 62

Meanwhile, in Caballero, this Court held that a candidate must still prove that after becoming a Philippine citizen, he/she
had reestablished his new domicile of choice. 63

To my mind, the COMELEC's reliance on Coquilla is apt. As the records disclose, petitioner returned to the Philippines on
May 24, 2005 under the Balikbayan Program, and therefore, only obtained the status of a temporary resident.
64

Specifically, Section 3 of RA 6768, as amended by RA 9174, merely accorded her the benefit of visa-free entry to the
65 66

Philippines for a period of one ( 1) year:

Section 3. Benefits and Privileges of the Balikbayan. - The balikbayan and his or her family shall be entitled to the
following benefits and privileges:

xxxx

(c) Visa-free entry to the Philippines for a period of one (1) year for foreign passport holders, with the exception
of restricted nationals[.] (Emphasis and underscoring supplied)

As such, since she did not waive her status of being a non-resident alien, her stay here upon her return on May 24, 2005
up until she reacquired Philippine citizenship in July 2006 should only be considered as temporary.

While it is not entirely indispensable that one first acquires the status of a permanent resident in order to reestablish
his/her domicile in the Philippines, it is, nonetheless, highly indicative of his/her animus manendi and animus
non revertendi. While it is undisputed that petitioner resigned from her work in the US in 2004; acquired, together with her
husband, quotations and estimates from property movers regarding the relocation of all their goods, furniture, and cars
from the US to the Philippines as early as March 2005; enrolled two (2) of her children in Philippine Schools for the school
year 2005 to 2006; and purchased a condominium unit in the Philippines in the second half of 2005, petitioner never
67

bothered applying for permanent residency up until July 2006, which is the date when she reacquired Filipino citizenship
68

under RA 9225, and consequently, waived her status as a non-resident alien. This means that from her return on May 24,
2005 up until July 2006, she, despite the above-mentioned overt acts, stayed in the Philippines only as a temporary
resident. If at all, her inattention to legitimize her so-called "permanent residence" in the Philippines in accordance with our
Immigration Laws stamps a significant question mark on her animus manendi and animus non revertendi on May 24,
2005. Thus, the COMELEC can hardly be blamed from reaching its ruling as petitioner's intention to permanently reside in
the Philippines and to abandon the US as her domicile on May 24, 2005 were, based on reasonable premises, shrouded
in doubt.

At any rate, the overt acts on which petitioner premises her claims are insufficient to prove her animus
manendi and animus non-revertendi. In fact, same as her failure to promptly address her permanent residency status,
some of these overt acts might even exhibit her ambivalence to reestablish her domicile in the Philippines on May 24,
2005. For instance, while she purchased a condominium unit in the Philippines in the second half of 2005 (which period is
even past May 24, 2005), records unveil that petitioner had other real properties in the US, one of which was purchased in
1992 and another in 2008. Relevantly, these dates are before and after May 24, 2005. Likewise, petitioner's
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correspondence with the property movers in the US in the first half of 2005 falters, in light of the fact that she and her
husband commenced actual negotiations for their transfer only in the following year, or in January 2006, months after May
24, 2005. Similarly, after this date, it was only in March 2006 when petitioner's husband informed the US Postal Service
70

of a change of address, without even specifying their new address in the Philippines. While it is true that the visa-free
71

entry of petitioner under the Balikbayan Program should not automatically hinder her ability to - as the ponencia would say
- "reestablish her life here," it remains that the parameters of domicile reestablishment under the auspices of political law
have not been clearly proven. Hence, because all the overt acts prior to that time had no impact in establishing
her animus manendi and animus nonrevertendi, the earliest date that petitioner could have reestablished her residence
was in July 2006. The overall conclusion of the COMELEC was therefore correct.

At this juncture, let me express my assent to the view that "[s]tronger proof is required in the reestablishment of national
domicile." This is because a person who has been domiciled in another country has already established effective legal
72

ties with that country that are substantially distinct and separate from ours. Such a situation hardly obtains when what is
involved is the change of domicile between localities within the same country.

I further observe that the need for stronger proof becomes more apparent when the person involved is one who has been
domiciled in another country as part of his/her naturalization as a citizen therein. As such, while citizenship and residency
are different from and independent of each other - this, being the key premise in the Court's rulings in Japzon and
Caballero - I do believe that "one may invariably affect the other." Being still a citizen of the US at the time of her return to
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the Philippines on May 24, 2005, petitioner remained entitled to the rights, privileges, and the protection the US
government extends to its nationals, including the right to residence. In fact, from May 24, 2005 to October 20, 20 I 0,
petitioner availed of this privilege when she returned to the US, on separate dates, significantly, for no less than five
times. To my mind, the ability to enjoy the privileges of foreign citizenship at any time, while remaining under that status,
74

conjures a reasonable presumption that the latter continues to avail of these privileges, which, among others, include the
privilege to reside in that foreign country. Hence, absent compelling evidence to show that he/she had reestablished
domicile in another country, it should therefore be presumed that he/she continues to be domiciled in the country he/she is
a citizen of.

Moreover, the necessity of presenting stronger proof as herein discussed is impelled by the very reason underlying the
residency requirement. The discernment of pervading realities in the place where one seeks to be elected is objectively
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farther from a person who has been domiciled in a foreign country. Thus, a higher standard of proof should be applied to a
candidate previously domiciled in a foreign country for he/she has been out of touch with the needs of the electoral
constituency he/she seeks to represent.

For another, the COMELEC cannot be faulted for relying on petitioner's admission in her 2012 CoC for Senator that her
period of residence from May 13, 2013 is "6 years and 6 months," which, hence, implies that she started being a
Philippine resident only in November 2006. While it is true that "[i]t is the fact of residence, not a statement in a certificate
of candidacy which ought to be decisive in determining whether or not an individual has satisfied the [C]onstitution's
residency qualification requirement," the COMELEC cannot be said to gravely abuse its discretion when it considered
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petitioner's admission against interest as another circumstance which militates against her claim's legitimacy. It is certainly
not patent and grave error for the COMELEC to regard a CoC as a notarized document and accord it the presumption of
regularity. Also, while petitioner may later impugn an admission against interest, the COMELEC found that her residency
77

declaration in her 2012 CoC could not be borne out of an "honest mistake," in light of the following considerations: (a) the
bulk, if not all, of the evidence she presented were executed before she reacquired her Philippine citizenship, which
cannot be done in light of Coquilla, among others; (b) while she made statements acknowledging that there was a mistake
in her 2015 CoC, they were nonetheless delivered at a time when, at the very least, the possibility of her running for
President was already a matter of public knowledge; and (c) petitioner was a well-educated woman and a high-ranking
official with a competent staff and a band of legal advisers and is not entirely unacquainted with Philippine politics, and
thus, would know how to fill-up a pro-forma CoC in 2012. As I see it, these reasons are not barren of any considerable
merit. At the very least, they are plausible enough to negate the finding that the conclusion amounted to grave abuse of
discretion. Besides, I believe that the falsity of the material representation already justifies the cancellation of petitioner's
CoC. As above-intimated, a candidate's intent is immaterial to a Section 78 analysis.

III.

Neither did the COMELEC gravely abuse its discretion in ruling that petitioner made a false material representation in her
2015 CoC when she declared that she was a natural-born citizen of the Philippines.

I depart from the ponencia's stand that petitioner's blood relationship with a Filipino citizen is demonstrable on account of
statistical probability, and other circumstantial evidence, namely, her abandonment as an infant in a Roman Catholic
Church in Iloilo City, as well as her typical Filipino features.
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A run-through of the basic tenets on citizenship is

"There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship
correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen." 79
"A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof." As defined
80

under the present Constitution, "[n]atural-born citizens are those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship." "On the other hand,
81

naturalized citizens are those who have become Filipino citizens through naturalization xx x." 82

"[I]t is the inherent right of every independent nation to determine for itself and according to its own constitution and laws
what classes of persons shall be entitled to its citizenship x x x." With respect to citizenship by birth, a particular
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jurisdiction generally subscribes to either the principle of jus sanguinis or the principle of jus soli, although it may adopt a
mixed system with features of both.

"The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the
nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus soli which
determines nationality or citizenship on the basis of place of birth." In Valles v. COMELEC, this Court held that "[t]he
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signing into law of the 1935 Philippine Constitution has established the principle of jus sanguinis as basis for the
acquisition of Philippine citizenship x x x. So also, the principle of jus sanguinis, which confers citizenship by
virtue of blood relationship, was subsequently retained under the 1973 and 1987 Constitutions." Following this
85

principle, proof of blood relation to a Filipino parent is therefore necessary to show that one is a Filipino citizen by birth.

In this case, petitioner has shown no evidence of blood relation to a Filipino parent to prove that she acquired Filipino
citizenship by birth under the jus sanguinis principle. While petitioner did not bear the initial burden of proving that she
made a false material representation on her citizenship in her 2015 CoC, as that burden belonged to those who filed the
petitions to deny due course to or cancel her CoC before the COMELEC, the burden of evidence shifted to her when
86 87

she voluntarily admitted her status as a foundling. Under Section 1, Article IV of the 1935 Constitution, which governs
petitioner's case, foundlings are not included in the enumeration of who are considered as Filipino citizens:
88

Section 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution.

(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been
elected to public office in the Philippine Islands.

(3) Those whose fathers are citizens of the Philippines.

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine
citizenship.

(5) Those who are naturalized in accordance with law.

A "'foundling' refers to a deserted or abandoned infant or child whose parents, guardian or relatives are unknown; or a
child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and
registered in the Civil Register as a 'foundling. "' The fact that a candidate's parents are unknown directly puts into
89

question his/her Filipino citizenship because the candidate has no prima facie link to a Filipino parent from which he/she
could have traced her Filipino citizenship. This is why the burden of evidence shifted to petitioner.

Without any proof of blood relation to a Filipino parent, and without any mention in the 1935 Constitution that foundlings
are considered or are even presumed to be Filipino citizens by birth, the COMELEC's finding that petitioner was not a
natural-born citizen cannot be taken as patently unreasonable and grossly baseless so as to amount to grave abuse of
discretion. As it is apparent, the COMELEC, with good reason, relied on the plain text of the 1935 Constitution based on
the statutory construction axioms of expressio unius est exclusio alterius and verba legis non est recedendum, as well
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as firmly abided by the jus sanguinis principle which, as repeatedly stated, necessitates proof of blood relation, of which
petitioner presented none. Accordingly, its analysis was grounded on sound legal basis and therefore unreflective of grave
abuse of discretion.

Further, while petitioner argues that foundlings should be considered as natural-born Filipinos based on the intent of the
framers of the 1935 Constitution, it should be pointed out that the 1935 Constitution, as it was adopted in its final form,
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never carried over any proposed provision on foundlings being considered or presumed to be Filipino citizens. Its final
exclusion is therefore indicative of the framers' prevailing intent. Besides, in Civil Liberties Union v. The Executive
Secretary, this Court remarked that:
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Debates in the constitutional convention "are of value as showing the views of the individual members, and
as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did
not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it [is] safer to construe the constitution from what appears upon its
face." (Emphases and underscoring supplied)
94

I also find no merit in petitioner's invocation of international covenants which purportedly evince a generally accepted
95

principle in international law that foundlings are presumed to be citizens of the country where they are found. Since the
1935 Constitution, and the 1973 and 1987 Constitutions thereafter, consistently subscribe to the jus sanguinis principle, it
is axiomatic that no international agreement or generally-accepted principle of international law - even assuming that there
is a binding one which supports petitioner's averred presumption - could contravene the same. "Under the 1987
Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation." 96

Thus, in our legal hierarchy, treaties and international principles belong to the same plane as domestic laws and, hence,
cannot prevail over the Constitution.

Finally, I oppose petitioner's resort to statistical probability as basis to presume natural-born citizenship in this case. Allow
me to point out that these statistics surfaced only in the proceedings before this Court and hence, could not have been
weighed and assessed by the COMELEC En Banc at the time it rendered its ruling. Be that as it may, the constitutional
requirements for office, especially for the highest office in the land, cannot be based on mere probability. "[M]atters dealing
with qualifications for public elective office must be strictly complied with." The proof to hurdle a substantial challenge
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against a candidate's qualifications must therefore be solid. We cannot make a definitive pronouncement on a candidate's
citizenship when there is a looming possibility that he/she is not Filipino. Also, the circumstances surrounding petitioner's
abandonment, as well as her physical characteristics, hardly assuage this possibility. By parity of reasoning, they do not
prove that she was born to a Filipino: her abandonment in the Philippines is just a restatement of her foundling status,
while her physical features only tend to prove that her parents likely had Filipino features and yet it remains uncertain if
their citizenship was Filipino.

For all of these reasons, I dissent to the majority's ruling that the COMELEC gravely abused its discretion. In the final
analysis, my conscience reminds me that the high duty demanded of me - to apply the law according to the parameters
set by our previous rulings - transcends politics or controversy, popularity or personality. It is a public trust which values
nothing higher than fidelity to the Constitution. I, therefore, vote to DISMISS the petitions.

ESTELA M. PERLAS-BERNABE
Associate Justice